14 Mar 2008

Sikh Marriage Act: A change in six decades of assimilation

What we have today is a newsclip from India which reports the Union Law Ministry having agreed in principle to have a separate law governing the marriage of sikhs. This revives an age long debate whether 'Jain, Sikhs, and Buddhists' are 'Hindus'. The debate has been in vogue since the beginning of 1950s when the then Prime Minister Nehru presented various bills regulating Hindu marriages, succession etc. in the Parliament (earlier he had presented a consolidated Hindu Code, which could not be passed given the refusal to accede to it by the then President Dr. Rajendra Prasad).

Courtesy: The Hindustan Times, 11th March, 2008 (click on the image to enlarge)
Since then the Hindu Marriage Act, 1955 has been the law governing the marriage of Hindus in India, covering almost all dimensions to marriage. However what has been most exception, and for which this post becomes relevant, has been the indiscriminate treatment of other similarly aligned religions in their own rights as Hindus.

To elaborate, the reproduction of Section 2 of the Hindu Marriage Act, 1955 would expedite our understand. It states;

Section 2. Application of Act:

(1) This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

A basic reading of the above would reveal that for the purposes of marriage laws applicable to them, Buddhists, Jains and Sikhs are considered to be Hindus and therefore the rules and conventions applicable to Hindus for marriage have been applied across the board on them, or put in other words, imposed on them. This is clear from the language of Section 2(1)(b) of the Act as above.

This extension of the application of the Act in terms implies that for all practical purposes, under the eyes of law, the same rules apply to Jains, Sikhs and Buddhists as they do to Hindus in the conventional understanding of the term. Despite considerably different practices in these sects (or as they say, 'religions' in their own right), all the three significantly represented forms of worship have been herded together in the same group. While Jains believe in their 24 religious teachers (Tirthankars) as showing them the path to enlightenment, Sikhs follow the teachings in Guru Granth Sahib after their tenth Guru Gobind Singh rechristened the Granth Sahib as the last Guru. Buddhists derive their beliefs from the teachings of Buddha who is said to have shown the path to enlightenment by following a code of conduct in daily wakes of life. Hindus on the other hand, have a major portion of their religious conduct arising out of mythological beliefs full of account of tussle between the good and the bad and thus prescribing conduct of belief and action from the lessons learned thereon from these fables (most of which are argued to be true to every word of the term).

On a macro understanding all these faiths, beliefs of religions may appear to be the same (perhaps which prompted the law makers to cover all of them under a same legislation) but then on a closer analysis, it is argued, they differ substantially on the core basis of their beliefs and thus cannot be herded together under one group without doing injustice to a majority of their thoughtful outlook and the way in which they are entitled to practice the religious of their choice, as guaranteed under the constitution. In a few cases the Supreme Court of India has incidentally come forth to examine whether Jains are a part of Hindu religion in the proper understanding of the term but the cross-roads where they have departed from the discussion has left the paths towards understanding them more muddy than clear.

This recent change in stance by the Law Ministry, upon the hushed need called forth by the Sikh community is perhaps an acknowledgment of the difference that lie therein and that different set of laws may be required to accommodate different sets of practices and beliefs that people's faith in religion can forth from them. This might turn out to be a viable proposition for the Sikhs but then accession to this demand has the potential of giving rise to centrifugal tendencies with even Jains and Buddhists coming out with their own leaders to call forth for a separate legislation for their own. And the level of inroads it will make in the aspired goal for a Uniform Civil Code is better not discussed. Let us wait to see how things turn out to be.

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